Citation Nr: 0006590
Decision Date: 03/10/00 Archive Date: 03/17/00
DOCKET NO. 96-17 829 ) DATE
)
)
On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Wilmington, Delaware
THE ISSUE
Entitlement to special monthly compensation at a rate in
excess of the (m) level under the provisions of 38 U.S.C.A §
1114.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Vecchiollo, Counsel
INTRODUCTION
The veteran served on active duty in the United States Air
Force from April 1954 to September 1956.
This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from a February 1996 rating action
of the RO.
In September 1998, the Board remanded the case for additional
development.
Thereafter, in a rating action of May 1999, the RO initially
decided that "special monthly compensation based on
entitlement under (m) plus additional at 50 percent or more
[was] granted effective March 12, 1996." However, it was
subsequently stated in the rating decision that the veteran
was entitled to only special monthly compensation benefits at
the (m) rate, effective on February 27, 1997. Given the
apparent confusion in the rating decision, the Board will
take appropriate action to clarify this matter to ensure that
the veteran has been assigned the appropriate compensation
rate.
FINDINGS OF FACT
1. The veteran has been determined to be entitled to special
monthly compensation at the intermediate rate between
subsection (m) and (n) of 38 U.S.C.A § 1114 based on loss of
use of both legs with complications preventing natural action
of both knees and is shown to have additional service-
connected disabilities separately rated at more than 50
percent.
2. The veteran is not shown to suffer from disability
manifested by anatomical loss of either leg at the hip level
or service-connected disabilities separately ratable from
those involving her lower extremities that would require the
regular aid and attendance of another person on a regular
basis.
CONCLUSION OF LAW
The criteria for the assignment of special monthly
compensation benefits higher than the intermediate rate
between subsection (m) and (n) under the provisions of 38
U.S.C.A § 1114, but not higher, have been met. 38 U.S.C.A.
§§ 1114, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §
3.350 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The RO has found that the veteran is entitled to special
monthly compensation at the rate under subsection (m) of 38
U.S.C.A § 1114 and 38 C.F.R. § 3.350(c) based on loss of use
of both legs with complications preventing natural action of
both knees. The veteran maintains that an increased rate of
special monthly compensation is warranted on the basis that
she should be assigned a separate rate based on the need for
regular aid and attendance caused by her service-connected
disabilities.
Initially, the Board finds it pertinent to note that
contentions have been presented by the veteran's
representative that, given that the veteran has separate
service-connected disabilities rated at more than a combined
50 percent (cervical spondylosis rated at 40 percent, a left
shoulder condition rated at 30 percent, left fifth metacarpal
fracture residuals rated at 10 percent, and right hand finger
fracture residuals rated at 10 percent), higher special
monthly compensation benefits at the intermediate level
between (m) and (n) are warranted.
Pursuant to 38 C.F.R. § 3.350(f)(3), in addition to the
statutory rates payable under 38 U.S.C.A. § 1114(l) through
(n) and the intermediate or next higher rate provisions, an
additional single permanent disability or combinations of
permanent disabilities independently ratable at 50 percent or
more will afford entitlement to the next higher intermediate
rate or if already entitled to the next higher intermediate
rate, to the next higher statutory rate under 38 U.S.C.A. §
1114, but not above the (o) rate. In the application of this
subparagraph, the disabilities independently ratable at 50
percent or more must be separate and distinct and involve
different anatomical segments or bodily systems from the
conditions establishing entitlement under 38 U.S.C.A. §
1114(l) through (n) or the intermediate rate provisions
outlined above. 38 C.F.R. § 3.350(f)(3).
Reviewing the veteran's service-connected disabilities as now
noted in the May 1999 rating decision, the Board finds that
she does have a combination of permanent disabilities
separately ratable at more than 50 percent from those
involving her lower extremities. As none of these
disabilities involves the same anatomical segment, she is
entitled to special monthly compensation at the intermediate
rate between 38 U.S.C.A. § 1114(m) and (n). Thus, benefits
if not already being paid at this rate are warranted.
The veteran has also contended during the course of her
appeal that increased special monthly compensation benefits
are payable on the basis of regular aid and attendance
required for her service-connected disabilities.
If the veteran, as a result of service- connected disability,
is in need of regular aid and attendance under 38 U.S.C.A. §
1114(l). The basic criteria for determining the need for
regular aid and attendance, pursuant to the provisions of 38
C.F.R. § 3.352(a), are as follows: inability of the claimant
to dress or undress herself, or to keep herself ordinarily
clean and presentable; frequent need or adjustment of any
special prosthetic or orthopedic appliances which by reason
of the particular disability cannot be done without aid (this
will not include the adjustment of appliances which normal
persons would be unable to adjust without aid, such as
supports, belts, lacing at the back, etc.); inability of the
claimant to feed herself through loss of coordination of
upper extremities or through extreme weakness; inability to
attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to
her or her daily environment. It is not required that all of
the disabling conditions enumerated in this paragraph be
found to exist before a favorable rating may be made. The
particular personal functions which the veteran is unable to
perform should be considered in connection with her condition
as a whole. It is only necessary that the evidence establish
that the veteran is so helpless as to need regular aid and
attendance, not that there be a constant need.
Determinations that the veteran is so helpless, as to be in
need of regular aid and attendance will not be based solely
upon an opinion that the claimant's condition is such as
would require her to be in bed. They must be based on the
actual requirement of personal assistance from others. See
Turco v. Brown, 9 Vet. App. 222 (1996).
However, the Board notes that additional special monthly
compensation is available under 38 U.S.C.A. § 1114(o) only if
an individual establishes entitlement to two or more rates of
special monthly compensation with no condition being
considered twice as provided in 38 U.S.C.A. § 1114(l) through
(n). In other words, entitlement to this level of special
monthly compensation would require, in this case, that the
veteran would be in need of regular aid and attendance due to
service-connected disabilities other than those involving her
lower extremities for which the (m) rate has already been
assigned. The Board stresses that it has already been
effectively determined that the veteran is in need of the aid
and attendance of another person due to the disabilities of
the lower extremities and that her currently assigned (m)
rate contemplates the need for aid and attendance based on
this disability.
The Board notes that, while the veteran is suffering from the
residuals of a cerebrovascular accident with left hemiparesis
that are shown to have caused her significant disability,
nonservice-connected conditions cannot be considered in
deciding her need for aid and attendance in this case.
The Board recognizes the severity of the veteran's service-
connected disabilities affecting her upper extremities and
cervical spine. However, there is no evidence of record that
indicates that she requires the regular aid and attendance of
another based solely on disablement attributable to her
service-connected upper extremity and cervical spine
disabilities. In addition, the Board notes that increased
special monthly compensation based on disability manifested
by anatomical loss of either leg at the hip level is not
demonstrated in this case.
ORDER
Special monthly compensation at the intermediate rate between
subsection (m) and (n) under the provisions of 38 U.S.C.A §
1114, but not higher, is granted, subject to the law and
regulations governing the payment of monetary benefits.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals